5.  On 14 March 2006 the first applicant, born in 1967, was arrested on account of his purported connection with the criminal world and possession of drugs, offences prosecuted respectively by Articles 223(1) § 2 and 260 § 2 (a) of the Criminal Code. On 16 March the Tbilisi City Court ordered his detention pending trial. He was subsequently placed in Ksani no. 7 prison.
6.  On 17 March 2006 the first applicant appealed against the detention order of 16 March 2006, complaining, inter alia, that the pre-trial detention was an unjustifiably severe and unnecessary measure, given the poor conditions in the prison and his critical state of health. In support, he submitted medical documents, dated 11 May 2005 and 16 March 2006, which diagnosed him with pulmonary fibro-cavernous tuberculosis and confirmed that he was a registered patient at a civil tuberculosis hospital, Abastumani Hospital, in Georgia.
7.  On 24 March 2006 the Tbilisi Court of Appeal dismissed the first applicant’s appeal of 17 March 2006. In reply to the medical complaint, the appellate court stated that “the submitted medical documents show only the diagnosis; no other medical documents about [the first applicant’s] current state of health, or the type and stage of his disease have been made available...”. The appellate court did, however, inform the prison authorities that the first applicant should be provided with appropriate conditions of detention and medical care in prison.
8.  The applicant’s state of health drastically deteriorated during the following eleven days of his detention in Ksani no. 7 prison. Notably, he started having acute respiratory difficulties and, with his joints painfully swollen, became unable to move around without assistance. Following the Public Defender’s intervention, the applicant was transferred on 25 March 2006 to the Medical Establishment of the Prison Department of the Ministry of Justice (“the old prison hospital”).
9.  After only two days in the old prison hospital, the first applicant was transferred back to Ksani no. 7 prison on 27 March 2006, where his state of health deteriorated further. Consequently, on 30 March 2006 the authorities returned him to the old prison hospital, where he was initially placed in the intensive care unit.
10.  On 24 July 2006 the Tbilisi City Court convicted the first applicant of the offences with which he had been charged. He was sentenced to 7 years in prison.
11.  By letters of 22 and 24 August 2006, the Ministry of Justice acknowledged that, following a medical examination conducted by its National Forensic Office (“the NFO”) between 1 May and 20 June 2006, the first applicant had been diagnosed with an open form of multidrug-resistant fibro-cavernous (or disseminated) tuberculosis, in the phase of infiltration and decomposition; he was haemorrhaging from the lungs. In addition, the examination results showed that the first applicant had been infected with viral hepatitis C and suffered from a number of serious cardiac and neurosensory disorders. The above-mentioned letters further stated that, since 4 April 2006, the first applicant had been receiving conventional, first‑line anti-tuberculosis medication under the DOTS programme (Directly Observed Treatment, Short-course – the treatment strategy for the detection and cure of TB recommended by the World Health Organisation, see paragraph 48 below).
12.  On 12 December 2006 the Tbilisi Court of Appeal upheld the first applicant’s conviction of 24 July 2006. His cassation appeal was rejected as inadmissible by the Supreme Court on 10 April 2007.
13.  Between 26 September and 26 November 2007, medical experts from the NFO conducted an additional examination of the first applicant. Their conclusions (“the medical conclusions of 26 September-26 November 2007”) confirmed the previous diagnosis as regards his cardiac problems and tuberculosis. Concerning the latter disease, the experts added that the first applicant should be considered as a gravely ill patient who needed special treatment in a tuberculosis hospital.
14.  On 4 July 2008 the first applicant, referring to all the available medical documents about the critical phase of his tuberculosis, including the medical conclusions of 26 September-26 November 2007, requested the suspension of the outstanding part of his prison sentence on the basis of the Order of 27 March 2003 of the Minister of Health (“the Order of 27 March 2003”). He complained, under Articles 2 and 3 of the Convention, that he was not provided with effective anti-tuberculosis drugs in prison, and that, consequently, there was a real risk to his life.
15.  On 30 July 2008 the Tbilisi City Court examined the first applicant’s request of 4 July 2008 at an oral hearing. Amongst others, the court heard one of the medical experts who had issued the conclusions of 26 September-26 November 2007. The expert confirmed the accuracy of those conclusions, namely that the first applicant required treatment in a specialised hospital with particular drugs of second-line family (“SLDs”) to which his tuberculosis had not yet developed a resistance and which were not available in the prison system. The expert suggested that the first applicant’s condition would only deteriorate in prison, given the lack of the necessary drugs there. The expert confirmed that, according to the Order of 27 March 2003 (see paragraph 41 below), the applicant’s type of tuberculosis could serve as a basis for release from serving a sentence.
16.  The Tbilisi City Court also heard a representative of the prison authorities, who stated that a more comprehensive system of multidrug resistant forms of tuberculosis treatment, DOTS+, would soon be introduced in Georgian prisons, and that the first applicant would be entitled to benefit from it. He was unable to specify the approximate dates of the introduction of that programme. The representative further stated that the first applicant had already been provided with permanent medical supervision in prison, and that the authorities would transfer him to a specialised hospital if his condition deteriorated.
17.  During the hearing of 30 July 2008, the first applicant’s representative submitted a handwritten letter of his client dated 29 July 2008 informing the Tbilisi City Court of his inability to attend the hearing in person owing to his state of health. His counsel also submitted a medical opinion of Dr T.J., the doctor who was treating the applicant in prison, dated 30 July 2008, which confirmed the first applicant’s diagnosis at that time and stated that all the previous attempts to treat him in prison with the medication available through the already introduced DOTS programme had proved unsuccessful. The doctor confirmed that the comprehensive DOTS+ programme was planned to be introduced in the near future.
18.  On the same day, 30 July 2008, the Tbilisi City Court delivered a decision dismissing the first applicant’s request for the suspension of his sentence as manifestly ill-founded. The court reasoned that no recent medical document about his current state of health had been made available.
19.  On 15 August 2008 the first applicant lodged an appeal against the decision of 30 July 2008, denouncing the City Court’s failure to endorse the medical opinion of 30 July 2008 as proof of his current medical condition. He reiterated his fears that, without proper medical treatment in prison, the violation of his right under Article 3 of the Convention would persist and, in the worst scenario, could lead to his death, in violation of Article 2.
20.  In the course of the appellate proceedings the first applicant made a request for an additional medical examination, so that all possible doubts about his state of health at that time could be dissipated. The Tbilisi Court of Appeal granted that request on 25 September 2008, ordering the prison authorities, and in particular the NFO, to examine the first applicant with the aim of establishing the nature and gravity of his diseases and obtaining recommendations on appropriate treatment for him.
21.  In a reply dated 20 October 2008, the NFO implicitly refused to enforce the court order of 25 September 2008, stating that the first applicant’s state of health had already been assessed between 26 September and 26 November 2007, and that, prior to assessing the need for an additional examination, the Tbilisi Court of Appeal should first hear the relevant medical experts.
22.  On 21 October 2008 the first applicant began a hunger strike to protest against the non-enforcement of the court order of 25 September 2008. In particular, and in line with that order, he requested a transfer to a specialised medical setting for diagnostic examinations, and denounced the fact that, despite his very critical condition, he was detained in a closed, “cellar-type” establishment. On the same day, the head of the old prison hospital issued an order putting the medical staff on alert for the duration of the applicant’s hunger strike. As disclosed by his medical file, the applicant was advised by doctors on a daily basis throughout the entire duration of his hunger strike (see paragraph 26 below) about the damage his self-harming conduct could cause to his health.
23.  On 24 October 2008 representatives from the Public Defender’s Office visited the first applicant in the old prison hospital. As disclosed by the minutes of their visit, they found him in a critical condition – with his swollen joints, he remained bedridden, was vomiting purulent blood, and so on. The representatives also noted that only his family had been providing the applicant with such SLDs as cycloserin, p-aminosalicylic acid (“PAS”).
24.  On 28 October 2008 the Public Defender’s Office expressed its concern about the first applicant’s aggravated state of health and invited the prison authorities to ensure his appropriate treatment.
25.  On 31 October 2008, pursuant to the court order of 25 September 2008, the NFO started the first applicant’s medical examination, which ended on 7 November 2008. Its results (“the medical recommendations of 31 October-7 November 2008”) fully confirmed the previously diagnosed grave form of tuberculosis, showed that the disease had deteriorated since the previous examination and recommended that the applicant be treated with SLDs in a hospital specialised in tuberculosis treatment.
26.  In the meantime, on 4 November 2008, the first applicant terminated his hunger-strike as the court order of 25 September 2008 had been enforced. On the same day his advocate enquired of the head of the old prison hospital whether or not the prison was able to provide the applicant with SLDs (such as cycloserin and PAS). The reply was negative.
27.  On 27 November 2008 the first applicant was transferred to the newly opened medical wing of Tbilisi no. 8 prison (“the new prison hospital”). He was visited there on 2 December 2008 by representatives of the Public Defender’s Office, who witnessed that, although he was in a newly refurbished room, he was not being provided with the necessary SLDs and diet, or allowed to receive food parcels from his family, and the hospital staff would not change his bed-linen regularly even though he was sweating profusely.
28.  On 5 December 2008 the first applicant started another hunger strike in protest against the failure to follow the medical recommendations of 31 October-7 November 2008. In particular, he requested that the prison authorities either provide him with the SLDs or transfer him to a specialised hospital. The new prison hospital was put on alert. As disclosed by the applicant’s medical file, he was reminded by the doctors on a daily basis, throughout the entire duration of his strike (see paragraph 31 below), how deleterious his refusal to take meals was for his state of health. The applicant also refused blood transfusions during that period.
29.  On 8 December 2008 the Tbilisi Court of Appeal examined the first applicant’s appeal against the decision of 30 July 2008 at an oral hearing. The court heard one of the medical experts who had issued the medical recommendations of 31 October-7 November 2008. The expert confirmed the gravity of the applicant’s condition and stated that his anti-tuberculosis treatment had been unsuccessful owing to the lack of the necessary drugs in prison. The expert added that the applicant required a special diet and the exposure to fresh air, suggesting that there were some chances of successful treatment of his type of tuberculosis outside of prison. The appellate court also heard a representative of the prison authorities, who submitted an opinion of Dr T.J, the doctor who was treating the applicant in prison, dated 1 December 2008. According to that opinion, the applicant had been provided with a combination of unspecified SLDs since 22 June 2008 against which his tuberculosis maintained sensitivity. The examination of various parties during the hearing further disclosed the fact that it was the applicant’s family who had procured those SLDs from Germany.
30.  In a decision of 8 December 2008, relying on the medical opinion of 1 December 2008 the Tbilisi Court of Appeal dismissed the first applicant’s appeal against the decision of 30 July 2008 as being unfounded.
31.  On 9 December 2008 the first applicant terminated his hunger strike.
32.  As disclosed by his medical file, from early January 2009 the applicant refused to take PAS and cycloserin, the SLDs procured by his family, in protest against the prison administration’s failure to provide him with a diet necessary for his condition. On 20 January 2009 the Public Defender’s Office complained about that problem to the prison authorities.
33.  On the same day, 20 January 2009, following a drastic deterioration in his condition, the first applicant was placed in the intensive therapy unit of the new prison hospital. Nevertheless, his condition continued to deteriorate and he died at midnight on 29 January 2009.
34.  On 24 October 2008 the first applicant requested, under Rule 39 of the Rules of Court, that the Government be indicated to transfer him to a specialised tuberculosis hospital, to arrange for his medical examination and treatment and to suspend his sentence pending treatment.
35.  On 10 November 2008 the President of the Chamber partly granted the above-mentioned request, indicating to the Government that the first applicant should be placed in a specialised medical establishment capable of dispensing appropriate anti-tuberculosis treatment. That measure was imposed until further notice. In so far as the case file, as it stood at the material time, did not disclose that the Tbilisi Court of Appeal’s decision of 25 September 2008 ordering the applicant’s medical examination had already been enforced (see paragraph 25 above), the President indicated to the Government to ensure that it was enforced. The Government were further invited to report on the implementation of the indicated medical measures by 1 December 2008.
36.  By a letter of 1 December 2008, the Government submitted to the Court the medical recommendations of 31 October-7 November 2008 in support of the fact that the court decision of 25 September 2008 had duly been enforced.
37.  As to the first applicant’s transfer to a specialised tuberculosis hospital, the Government stated that such a measure was not necessary for the following reasons. First, the applicant had already been transferred, on 27 November 2008, to the new prison hospital, the medical services of which were comparable if not superior to those of a civil tuberculosis hospital. Secondly, even if the applicant were allowed to be treated at an outside tuberculosis hospital, such treatment would in any event be limited to DOTS, to which programme he had already had access in prison.
38.  The Government further stated that the shortage of SLDs was a general pharmaceutical problem on a nationwide scale, which could in no way be imputed to the prison only. They promised that as soon as ofloxacin, PAS and cycloserin, the drugs capable of fighting the first applicant’s tuberculosis, appeared in the country’s pharmaceutical network, they would immediately be dispensed to him. In the meantime, the authorities allowed the applicant’s family to provide him with those drugs in prison.
39.  In a letter of 27 January 2009, addressed to the Minister of Justice, the Public Defender expressed his deep concern about the failure to transfer the first applicant to a specialised tuberculosis hospital, contrary to the interim measure indicated by the Court on 10 November 2008; the Minister was urged to ensure the immediate enforcement of that measure.